Opposition Brief — Cherrix v. Virginia

Supreme Court, u,

FILED “

9 110 wi 15199

No. __ OFFICE OF THE clerk

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1998

BRIAN LEE CHERRIX, PETITIONER

V.

COMMONWEALTH OF VIRGINIA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

PETITION FOR A WRIT OF CERTIORARI

Lots G. WILLIAMS

Counsel of Record

TIMOTHY K. ARMSTRONG

JULIE K. BROF

JEANNE-MARIE S. RAYMOND

JASON D. SMITH

HOwREY & SIMON

1299 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 783-0800

Attorneys for Petitioner

Brian Lee Cherrix

QUESTIONS PRESENTED

(CAPITAL CASE)

1. Whether the Virginia state courts improperly allowed

the introduction of a statement as a “confession,” even

though the defendant denied having confessed, and the

statement had not been adopted by the defendant or otherwise

authenticated, where the putative confession was the sole ba-

sis for his conviction and sentence of death?

2. Whether the Virginia state courts improperly curtailed

a criminal defendant’s constitutional right to rebut future

dangerousness and to introduce evidence in mitigation?

3. Whether Virginia’s death penalty statute is unconstitu-

tional in that it does not provide adequate guidance for juries

to determine whether the death penalty is warranted, thereby

risking arbitrary imposition of the most drastic penalty al-

lowed by law?

4. Whether the Virginia state courts failed to require the

jury unanimously to agree on the elements of vileness,

thereby permitting the unconstitutional imposition of a death

sentence based on less than a unanimous verdict?

PARTIES TO THE PROCEEDING

Pursuant to Supreme Court Rule 14.1(b), petitioner states

that all parties appear in the caption of the case on the cover

page.

li

TABLE OF CONTENTS

QUESTIONS PRESENTED .......c-cescocescosssesecesessesesereseseesevesers i

PARTIES TO THE PROCEEDING ............ccccccssssececececececeseee il

ST cc |

SESS ES |

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............ccccscssssscseseseseseseseesses 2

SUMMARY OF THE ARGUMENT.....0.......ccccscececececsceceeseeee 2

SSATEMENT OF THE CASE ....cccescscccesecsssevecsssessoseeseseeveeesce 3

REASONS FOR GRANTING THE WRIT ...0.0....eecccececesseeees 8

I. THE VIRGINIA COURTS IMPROPERLY

ALLOWED THE INTRODUCTION OF AN

UNSIGNED REPUDIATED STATEMENT AS A

CONFESSION ALTHOUGH IT WAS NOT

ADOPTED BY MR. CHERRIX ............cccccccesosececesesesscess 8

Il. THE VIRGINIA COURTS VIOLATED THE

EIGHTH AND FOURTEENTH AMENDMENTS

BY IMPROPERLY DENYING MR. CHERRIX

THE RIGHT TO REBUT FUTURE

DANGEROUSNESS AND INTRODUCE

RELEVANT MITIGATION EVIDENCE ...............000-... 11

A. The Virginia Courts Violated Mr. Cherrix’s

Fourteenth Amendment Right To Due Process

By Preventing Him From Rebutting The

Prosecution’s Allegation Of Future

EE 1]

B. The Virginia Courts Violated Mr. Cherrix’s

Eighth Amendment Rights By Preventing Him

From introducing Relevant Evidence In

EAS EA Ce at

fil. VIRGINIA’S DEATH PENALTY SENTENCING

STATUTE CONFLICTS WITH SETTLED

111

PRECEDENT AND UNDERMINES

CORSE FEE UF IGA. FOB revecccrecessoresescoserecosservsvosees 17

A. Virginia’s Capital Sentencing Provision Is

Unconstitutional, A Fatal Defect Not Cured

By The State’s Refusal To Give

Constitutionally Mandatory Limiting

I niecceniestessiinnnsisnintinsincnintininminnininnininnnianse 17

B. The Jury Instructions Also Did Not Require

Unanimity On The Basis For The Sentence Of

SIRI ssissesishinsiesindimecvsitdsituiiteiepibnikledaiiantnadaiaveasubmdicaldiilestalied 24

ITT venisnicuviteiiitiiletieleeaienabinciasiiainbatandsiatianidatidintibe 27

INDEX TO APPENDICES

Cherrix v. Commonwealth of Virginia, 257 Va. 292,

FES Be ee CO Oe tntcctitnincatininsiiiiaintanniioiinen la

Cherrix v. Commonwealth of Virginia, Nos. 981798 &

Re Ce FA Fe cecettenrenintnctsntinenniennincnnencan 27a

Res Ss MII. SEE ertasincstsienintaiiitinnintsenipabeenieneiminmeaneiie 28a

Rech Gis Il SE artornitinsiniecesisnsnchisiawiencnnnniiinbnneaiionmmmngniainen 28a

Wee, Ce RR. & CF seccscceieseccincnincivccnntiveintisiceniiniianinn 29a

TABLE OF AUTHORITIES

Page(s)

CASES

Briley v. Bass, 584 F. Supp. 807 (E.D. Va.), aff’d,

742 F.2d 155 (4th Cir), cert. denied, 469 U.S. 893

ETOP OD secicionelssccapsenetittsonmsitinibapanilenienacidaciiaiiaaaimianiaeetaciietiaka ida ial 26

California v. Ramos, 463 U.S. 992 (1983)..........ccccsssseseseeees 13

Cherrix v. Commonwealth, 257 Va. 292, 513 S.E.2d

Re Ce siccensstanntiinesiimeneicideiinanieesiaeniace 1,9, 13, 15

Clark v. Commonwealth, 257 S.E.2d 784 (Va. 1979),

cert. denied, 444 U.S. 1049 (1980).........000.0000... 20, 23, 26

Eddings v. Oklahoma, 455 U.S. 104 (1982)...........:0000. 15, 16

Escobedo v. Illinois, 378 U.S. 478 (1964).........ccccccccssseceeees 10

Espinosa v. Florida, 505 U.S. 1079 (1992)...........c:ccseeeceeeee 23

Furman v. Georgia, 408 U.S. 238 (1972) .........:ccccsseeees 18, 21

Gardner v. Florida, 430 U.S. 349 (1977)...........cccccceeeee 13, 18

Godfrey v. Georgia, 446 U.S. 420 (1980) ............cccec0ee 17, 18

Gregg v. Georgia, 428 U.S. 153 (1976) ............cscceesseees 18, 19

Ben 06 WR, FHT UB. FO C0 Pa cccsvscescinsctsibnieiintcnnicisinaneat 26

Justus v. Commonwealth, 266 S.E.2d 87 (Va. 1980)............ 20

Lankford v. Idaho, 500 U.S. 110 (1991)... cece eeceeereeeeee 21

Le v. State, 947 P.2d 535 (Okla. Crim. App. 1997),

cost..demied, LIS S. Ct, ZEZ9 C1DGS) ncccccoccverocccccecesecssosees 27

Lockett v. Ohio, 438 U.S. 586 (1978)..............000000- 3, 7, 15, 16

Richardson v. United States, — U.S. —, 119 S. Ct.

SPT (CUO? iviniisteinienndimeaiaaaniamamenl 3, 24, 26, 27

Shell v. Mississippi, 498 U.S. 1 (1990) ............cccccseesseesseeeees 19

Simmons v. South Carolina, 512 U.S. 154 (1994)....11, 13, 21

Skipper v. South Carolina, 476 U.S. 1 (1986)......3, 13, 15, 16

v

Smith v. Commonwealth, 248 S.E.2d 135 (Va. 1978),

cert. denied, 441 U.S. 967 (1979)............cccccsssesserees 20, 23

Tuggle v. Commonwealth, 323 S.E.2d 539 (Va. 1984),

yaceted, 471 U.S. 1GSS CIGBS) cccceccossocececsoesencevccesveccsseese 20

Tuilaepa v. California, 512 U.S. 967 (1994)........ceeeeeeeees 18

Turner v. Williams, 35 F.3d 872 (4th Cir. 1994), cert.

Gemmad, FA GB. FEET Cae icicntintdstmaieains 23

United States v. Hall, 93 F.3d 126 (4th Cir. 1996),

cert. denied, $19 U.S. 1151 (1997).....ccccccccssvesccccesveceseees 25

Wade v. State, 368 S.E.2d 482 (Ga. 1988)............::cccceeeeeeees 27

Walton v. Arizona, 497 U.S. 639 (1990)............ccccseeeeeceeeseees 19

Wilson v. Zant, 290 S.E.2d 442 (Ga.), cert. denied,

GSD U.S. HGS CH ee wricstsansssunticisesiinieiiatiainaeicanias 27

Wong Sun v. United States, 371 U.S. 471 (1963)......... 2,9, 10

Woodson v. North Carolina, 428 U.S. 280 (1976) .....3, 10, 22

STATUTES

BB ULB. © Rabe Peltccsessecttstenssesevsientiandnesaiaaanal l

Van. Copii Amin: BDI cetsuscssersenevsinnnieietecmaennamineaiin 3

OTHER AUTHORITIES

Virginia Model Jury Instruction No. 34.122 (1993

SSDERDORREEE OG.) onresissnsrerssesecinnnsiniibuiaimmnninammiciida 23

vi

In the Supreme Court of the United States

OCTOBER TERM, 1998

No.

BRIAN LEE CHERRIX, PETITIONER,

V.

COMMONWEALTH OF VIRGINIA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

PETITION FOR A WRIT OF CERTIORARI

Petitioner Brian Lee Cherrix respectfully petitions for a

writ of certiorari to review the judgment of the Supreme

Court of Virginia in this case.

OPINIONS BELOW

The opinion of the Supreme Court of Virginia is officially

reported at 257 Va. 292, 513 S.E.2d 642 (1999), and appears

in the Appendix to this petition. (Pet. App. 1a).

JURISDICTION

This petition seeks review of the final judgment of the

Supreme Court of Virginia in this matter, entered February

26, 1999, as to which a motion for rehearing was denied on

April 16, 1999. The order on rehearing appears in the Appen-

dix to this petition. (Pet. App. 27a). This Court has jurisdic-

tion under 28 U.S.C. § 1257(a).

ats

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The texts of the Eighth and Fourteenth Amendments to

the United States Constitution are reprinted in full in the Ap-

pendix pursuant to Supreme Court Rule 14.1(f). (Pet. App.

28a).

The text of the Virginia Code Section 19.2-264.4 is re-

printed in full in the Appendix pursuant to Supreme Court

Rule 14.1(f). (Pet. App. 29a).

SUMMARY OF THE ARGUMENT

Petitioner Brian Lee Cherrix was convicted of capital

murder and sentenced to die based solely on an unsigned re-

pudiated “confession” allegedly elicited and transcribed by a

local police officer, who was under intense pressure to break

the case, when no one else was present, and minutes after Mr.

Cherrix himself hand-wrote a statement that he was innocent.

Absolutely no physical evidence connected Mr. Cherrix to the

crime: no DNA, no fingerprints, no footprints, no incrimi-

nating blood stains—none of the usual items that crimes of

this sort normally leave behind. In fact, the only physical evi-

dence—two strands of long, blonde hair not belonging to the

victim—pointed to someone other than Mr. Cherrix, who has

short brown hair. Mr. Cherrix steadfastly denied that he

committed the crime.

1. An unsigned confession that was never adopted by the

defendant cannot be admitted against him. Although a con-

fession need not be signed, this Court has held that the sub-

stance of a confession must be adopted by the defendant in

order for it to be admissible against the defendant. Wong Sun

v. United States, 371 U.S. 471, 491 (1963). Because the con-

viction in this case rests solely on an unsigned statement

never adopted by the defendant (and indeed, disputed by

iin

him), and because this Court has recognized the need for

heightened reliability in capital cases, Woodson v. North

Carolina, 428 U.S. 280, 305 (1976), this Court should grant

certiorari to reverse an inherently unreliable conviction and

clarify the quantum of certainty required before the law may

Carry out its most severe and irrevocable penalty.

2. Acapital defendant has a constitutional right to pres-

ent evidence in mitigation, Lockett v. Ohio, 438 U.S. 586,

604 (1978) (plurality opinion), or to rebut a prosecutorial ar-

gument that the defendant poses a future risk to society. Skip-

per v. South Carolina, 476 U.S. 1, 5 n.1 (1986). In this case,

however, the state courts severely curtailed a capital defen-

dant’s rights to present such evidence. The courts below en-

tirely prevented Petitioner from rebutting the prosecution’s

future dangerousness argument, and prevented him from in-

troducing relevant mitigating evidence.

3. The statutory provision under which Petitioner was

sentenced to death, Va. Code Ann. § 19.2-264.4, is unconsti-

tutiona!!y vague in that it fails to guide adequately the discre-

tion of the sentencing jury. Furthermore, the instructions

given to explain this statute were themselves vague and in-

consistent, and only served to obfuscate, rather than clarify,

the critical issues presented to the jury for resolution.

4. This Court’s recent decision in Richardson v. United

States, — U.S. —, 119 S. Ct. 1707 (1999), makes clear that

the courts below also erred in not requiring the jury unani-

mously to agree which of the statutory elements enumerated

in section 19.2-264.4 underlay their finding of “vileness” and

formed the basis for their sentence of death.

STATEMENT OF THE CASE

On the evening of January 27, 1994, Famous Pizza on

Chincoteague Island received an order for a pizza delivery to

a

an address in the Small Piney Island area. (JA 1088).' Tessa

Van Hart left Famous pizza around 7:45 p.m. to deliver the

pizza (JA 1089), but she never returned. (JA 1083). Shortly

after midnight, the police found Mrs. Van Hart’s body in the

back seat of her car, which was parked behind a vacant home

approximately a mile away from the Small Piney Island area.

(JA 1094-1095, 1564). Mrs. Van Hart had died from two

gunshot wounds to the head, and there was some evidence

that she had been sodomized around the time of her death.

(JA 1156).

The police found virtually no physical evidence, and such

evidence as was discovered did not implicate Mr. Cherrix.

There were long, blonde hairs found on the car that did not

belong to Mrs. Van Hart or to Mr. Cherrix. (JA 34-35, 1560-

1561). Seminal fluid retrieved from the victim’s body con-

tained no sperm, and therefore the Commonwealth’s experts

testified that they could not obtain DNA test results. (JA 32-

33, 42, 1134, 1156). The only blood found was consistent

with that of the victim. (JA 1159-1160, 1164—1165). The

police had no leads, and the crime remained unsolved for two

years.

Mr. Cherrix’s connection with this investigation seems to

have begun when he was spending time in the Accomack

County Jail on unrelated charges. (JA 1268). Mr. Cherrix

contacted the sheriff and gave the first of several statements

all linking his deceased cousin, Robert Birch, III, to the mur-

der of Tessa Van Hart. As recounted in the decision of the

Supreme Court of Virginia, law enforcement authorities

questioned Mr. Cherrix on a number of occasions regarding

his knowledge of the crime. The lower court’s opinion gave

great emphasis to the minor respects in which Mr. Cherrix’s

' Citations herein are to the Joint Appendix the parties compiled before

the Virginia Supreme Court, and will be rendered as “JA 7

a 2

rendition of the events altered over time with the accretion of

additional explanatory details. That court’s assessment, how-

ever, fails to recognize that Mr. Cherrix’s statements never

wavered on the most critical elements: Mr. Cherrix consis-

tently maintained that Birch had killed Van Hart and had sex

with the body; that Birch had thereafter disposed of his

weapon by throwing it in the creek; and that Birch had con-

fessed these events to Mr. Uherrix. Mr. Cherrix’s statements

to the authorities uniformly identified Birch as Van Hart’s

admitted killer.

After questioning Mr. Cherrix repeatedly, and based on

what Mr. Cherrix told them about Birch’s statements to him,

the police began an underwater search of the creek for the

gun. The search was unsuccessful. The police took Mr. Cher-

rix to the dive site and asked him to show where Birch had

discarded the gun. Mr. Cherrix explained that the location

Birch had described was not the location they were searching.

Trooper Mark Fowler then drove Mr. Cherrix to another lo-

cation that Mr. Cherrix contended Birch had shown him. The

dive team relocated to this new site, and eventually recovered

a .22-caliber Marlin rifle. (JA 634-636, 1288-1289). The

gun’s condition had severely deteriorated after being so long

submerged. (JA 1339). Ballistics tests could not determine

whether the gun the police found was, in fact, the gun that

killed Mrs. Van Hart. (JA 1344).

On April 25, 1997, Mr. Cherrix submitted a written re-

quest to speak with Assistant Police Chief Edward Lewis, a

relative of Mr. Cherrix who had previously interviewed him

regarding the investigation. (JA 1445). Lewis spoke with Mr.

Cherrix for a few minutes and then left the room, instructing

Mr. Cherrix to write down where he was on the night Van

Hart was killed. (JA 1474). When Lewis returned, Mr. Cher-

rix had written that on that night, he was home on the phone

wie

with his wife who was in the hospital. (JA 1475). Apparently

Lewis found this statement unsatisfactory because Lewis then

began a “question and answer” session: Lewis wrote down a

question and then wrote down an answer. These questions

and answers indicated that Mr. Cherrix had killed and

sodomized Ms. Van Hart. (JA 10-14, 1493-1500, 1505-

1507). When he finished, Lewis showed Mr. Cherrix the

“statement” and asked him to sign it. Mr. Cherrix refused.

(JA 1523-1524).

Of all the times Mr. Cherrix recounted the events of Janu-

ary 27, 1994, only in Officer Lewis’s uncorroborated state-

ment does he allegedly incriminate himself. Furthermore, this

version exists only in the form of a “confession” that Officer

Lewis wrote without the benefit of a tape recorder (although

one was available to Officer Lewis) with neither defense

counsel nor any other witness present—a version that the de-

fendant refused to sign, repudiated at the time as untrue, and

has consistently repudiated since. It bears reemphasizing that

Officer Lewis’s written statement was the only evidence

identifying Mr. Cherrix as the killer, and forms the sole evi-

dentiary basis for his conviction and sentence of death.

Mr. Cherrix was indicted for capital murder, forcible sod-

omy, using a firearm in the commission of those offenses,

and being a felon in possession of a firearm. (JA 46-48). Be-

fore trial, Mr. Cherrix filed a motion challenging the consti-

tutionality of Virginia’s death penalty statute. Among other

things, Mr. Cherrix argued that the “vileness” factor, as writ-

ten and as applied, is unconstitutionally vague in that it fails

to guide adequately the jury’s discretion in determining

whether to impose a sentence of death. (JA 57). That motion

was denied. (JA 232).

At trial, Mr. Cherrix objected to the “statements” made to

Officer Lewis (which had been drafted solely by Officer

e

Lewis in a script-like question-and-answer fashion) being

read to the jury. The trial court overruled the objection, and

allowed Lewis to read his notes as if they represented a con-

fession by Mr. Cherrix. (JA 1479-1492).

At sentencing, Mr. Cherrix sought to rebut the prosecu-

tion’s argument that he posed a future danger to society,

which formed the basis for the prosecution’s request for a

death sentence. Mr. Cherrix sought to present to the jury the

testimony of an expert penologist, a sociologist and crimi-

nologist, several Virginia correctional officials, and Mr.

Melvin Shiflett, an inmate of the Virginia Department of Cor-

rections who is currently serving multiple life sentences.” The

2 In his proffer, Mr. Cherrix represented that Mr. Shiflett would testify to

| the horrific conditions of life in prison and also the substantial likelihood

that Mr. Cherrix would be raped in prison given his unusually small stat-

ure and slight build. Concerning the offered testimony of the department

of corrections officers, Mr. Cherrix argued that the jury cannot properly

assess “future dangerousness” as an aggravating factor unless the jury is

also educated as to the conditions that Mr. Cherrix would be subjected if

given a sentence of life. In this regard, Mr. Cherrix also sought to present

to the jury the testimony of Ronald Angelone, Director of the Virginia

Department of Corrections, who would have testified that a principal con-

cern would be keeping Mr. Cherrix safe from other inmates, not protect-

ing prisoners from any danger that Mr. Cherrix might present. (JA 771,

777). Mr. Cherrix, moreover, requested that an expert penologist, sociolo-

gist and criminologist be permitted to offer testimony similar to the prof-

fered evidence of Mr. Shiflett and the Virginia corrections officials.

The trial court denied Mr. Cherrix’s request to subpoena Mr. Shiflett,

characterizing his offered testimony as immaterial and not probative. (JA

298, 769-770). The court also excluded the proffered evidence of the cor-

rections officials, reasoning that the expected experiences of Mr. Cherrix,

should he be sentenced to life, do not constitute mitigating evidence.

Mitigating evidence, however, has been defined broadly, to include “any

aspect of a defendant’s character or record and any of the circumstances

of the offense that the defendant proffers as a basis for a sentence less

than death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opin-

ion). The exclusion of these witnesses, accordingly, runs counter to the

oe

testimony of these witnesses, collectively, would have per-

mitted the sentencing body to conclude that, given Mr. Cher-

rix’s physical stature and the highly structured prison envi-

ronment, Mr. Cherrix would pose no danger to prison society.

The trial court, however, denied Mr. Cherrix’s request to pre-

sent such evidence. (JA 298, 770-781).

On appeal, the Virginia Supreme Court affirmed, reject-

ing, inter alia, Mr. Cherrix’s arguments that (1) the putative

“confession” was erroneously introduced and inadmissible;

(2) Mr. Cherrix was prevented from introducing evidence to

rebut the prosecution’s suggestion of future dangerousness

and as mitigation; and (3) the governing provisions of the

Virginia capital sentencing statute are unconstitutional.

Mr. Cherrix respectfully petitions this Court to issue a writ of

certiorari to review this decision of the Virginia Supreme

Court.

REASONS FOR GRANTING THE WRIT

I.

THE VIRGINIA COURTS IMPROPERLY

ALLOWED THE INTRODUCTION OF AN

UNSIGNED REPUDIATED STATEMENT AS A

CONFESSION ALTHOUGH IT WAS NOT

ADOPTED BY MR. CHERRIX

(

Brian Cherrix’s conviction rests solely on an unsigned

statement, introduced through the testimony of an officer who

was under intense pressure to break the case, and who wrote

consistent direction of this Court’s Eighth Amendment jurisprudence and

mandates reversal and remand for a new sentencing hearing in which all

the relevant mitigating evidence is presented to the jury, and Mr. Cherrix

is afforded an opportunity to rebut the prosecution’s allegation of future

dangerousness.

-9-

the statement with no witnesses present and no recording de-

vices, minutes after Mr. Cherrix had written a statement pro-

claiming his innocence. The Supreme Court of Virginia erred

in finding that Officer Lewis’s notes constituted an admissi-

ble confession by Mr. Cherrix. Mr. Cherrix never adopted the

substance of those notes as his own statement; instead, by re-

peatedly refusing to sign the statement, and by writing his

own contrary statement, he explicitly rejected the substance

of Officer Lewis’s notes. Indeed, the only statement adopted

by Mr. Cherrix in that interview states that he was at home on

the phone with his wife who was in the hospital on the night

the murder occurred. If the decision of the Supreme Court of

Virginia is allowed to stand, it will permit many persons to be

put to death based on the most unreliable evidence, a truth-

stretching putative confession crafted by possibly well inten-

tioned, but overzealous, law enforcement personnel. In the

worst case, the decision below may foster unchecked abuse,

leaving an accused with no effective recourse if the state,

lacking both evidence or an actual confession by the accused,

simply manufactures a confession the defendant never made.

Citing Wong Sun v. United States, 371 U.S. 471, 491

(1963), the Supreme Court of Virginia correctly held that a

statement does not have to be signed in order to be admitted

as a confession. Cherrix, 513 S.E.2d at 650. (Pet. App. 13a).

Wong Sun, however, allows admission of an unsigned confes-

sion only if the defendant “adopted [the] substance” of the

confession. Wong Sun, 371 U.S. at 491. In this case, Mr.

Cherrix never adopted the statement or the substance of the

statement, and the Supreme Court of Virginia recounted ab-

solutely no evidence suggesting that he did. Indeed, far from

adopting the statement, Mr. Cherrix’s only handwritten

statement denied any involvement in the murder. Because

Mr. Cherrix’s own statement denied any involvement and be-

- 10-

cause he refused to sign the statement written by the officer,

Mr. Cherrix never adopted that statement and the statement

was not admissible as a confession.

This Court has warned that a criminal law enforcement

system that relies on confessions is “less reliable and more

subject to abuses” than a system that relies on independent

investigation. Escobedo v. Illinois, 378 U.S. 478, 489 (1964).

This case is the very definition of the feared abuses that result

in a denial of due process. Mr. Cherrix’s conviction rests

solely on his confession: the Commonwealth introduced ab-

solutely no physical evidence or witnesses connecting Mr.

Cherrix to the crime. Mr. Cherrix refused to adopt the state-

ments written by the officer both by refusing to sign the

statement and by writing his own statement proclaiming his

innocence. To allow an officer’s written words to be admitted

as a confession by the defendant who did not adopt those

words or their substance “would be to blast one of the sup-

port columns of justice by law.” Wong Sun, 371 U.S. at 480

n.8 (quoting Wrightson v. United States, 222 F.2d 556, 560

(D.C. Cir. 1955)). Allowing the judgment below to stand

gives law enforcement officials, convinced in their own sense

of right but lacking actual evidence, a consequence-free in-

centive to cut corners and devise a “confession” whenever a

crime is too difficult to solve, posing intolerable risks to fun-

damental fairness and the due process of law.

The need to prevent such egregious violations of due pro-

cess resulting in an unreliable conviction is especially great

here, where the conviction rests squarely on the statement

and Mr. Cherrix’s penalty is death. This Court has already

ruled that there is a heightened need for reliability when the

punishment might include death. Woodson v. North Carolina,

428 U.S. 280, 305 (1976) (because “the penalty of death is

qualitatively different from a sentence of imprisonment * * *

-iH-

there is a corresponding difference in the need for reliability

in the determination that death is the appropriate punish-

ment”); see also Simmons v. South Carolina, 512 U.S. 154,

172 (1994) (Souter, J., concurring). Here, however, even the

normal due process requirements for reliability have been ne-

glected, and the Supreme Court of Virginia has declined to

remedy this error. Therefore, Mr. Cherrix’s constitutional

right to due process was violated. Because Mr. Cherrix’s

conviction rests solely on the putative “confession,” the

question whether the statement was admissible is squarely

presented and dispositive of the case. Accordingly, the case

presents an ideal opportunity for the exercise of this Court’s

discretionary review on a fundamental and recurring criminal

justice problem, and the writ should issue.

Il.

THE VIRGINIA COURTS VIOLATED THE

EIGHTH AND FOURTEENTH AMENDMENTS

BY IMPROPERLY DENYING MR. CHERRIX

THE RIGHT TO REBUT FUTURE

DANGEROUSNESS AND INTRODUCE

RELEVANT MITIGATION EVIDENCE

A. The Virginia Courts Violated Mr. Cherrix’s

Fourteenth Amendment Right To Due Process

By Preventing Him From Rebutting The

Prosecution’s Allegation Of Future

Dangerousness

Brian Lee Cherrix’s death sentence was based, in part, on

the Commonwealth’s argument, accepted by the sentencing

jury, that Mr. Cherrix presented a future danger to society.

Seeking to rebut this aggravating factor during the sentencing

phase, Mr. Cherrix unsuccessfully sought to present to the

jury the testimony of an expert penologist, a sociologist and

- #3.

criminologist, several Virginia correctional officials, and a

current Virginia Department of Corrections inmate. The trial

court denied each of these motions.

The witnesses Mr. Cherrix sought to introduce would

have rebutted the Commonwealth’s suggestion that

Mr. Cherrix posed a future danger to society. Mr. Cherrix at-

tempted to show that, contrary to the prosecution’s sugges-

tion, he would pose no future danger to society if sentenced

to life in prison. Mr. Cherrix was able to introduce one aspect

of that showing: his appointed mental health expert, Dr. John

Bulette, testified that Mr. Cherrix’s psychological propensi-

ties permitted him to adapt and conform to a highly struc-

tured environment. (See JA 1770). The jury was prevented,

however, from hearing the testimony that would have con-

nected these psychological propensities to the conclusion that

Mr. Cherrix would not pose a future danger. The evidence

Mr. Cherrix unsuccessfully sought to introduce for these

points included:

e Testimony of an expert penologist, soci-

ologist, and criminologist, to the effect

that the prison environment provided the

kind of highly structured environment to

which Dr. Bulette had testified Mr. Cherrix

was well suited by temperament; and

e Testimony of corrections officials, and

Mr. Shiflett, to the effect that a person of

Mr. Cherrix’s small stature (five feet, five

inches) and slight build (150 pounds) (JA

531, 535) would pose no risk to the prison

population and, indeed, would need to be

shielded from other prisoners.

This proffered testimony regarding the highly structured and

dangerous conditions of prison life would have provided a

» 3.

background against which the jury could gauge Mr. Cherrix’s

future dangerousness that was far different from the impres-

sion the Commonwealth sought to establish. The lower

courts, however, denied the jury this necessary contextual in-

formation, to Mr. Cherrix’s prejudice, and in violation of his

Fourteenth Amendment right to due process.

The state courts’ backhanded treatment of Mr. Cherrix’s

due process claims exacerbated the prejudice to him and

powerfully illustrates the need for the clear statement of the

law that only this Court can provide. Notwithstanding his ci-

tation to the Fourteenth Amendment and this Court’s due

process jurisprudence, the Supreme Court of Virginia entirely

ignored Mr. Cherrix’s allegation of a denial of due process,

and purported to uphold the trial court’s decision based solely

on state law. See Cherrix, 513 S.E.2d at 653 (Pet. App. 18a).

An examination of this Court’s relevant precedents, however,

confirms that the Virginia courts unconstitutionally restricted

a capital defendant’s rights to rebut the prosecution’s allega-

tion of future dangerousness.

It is, of course, true that a State may rely on a capital de-

fendant’s future dangerousness in seeking the ultimate pen-

alty of death. See California v. Ramos, 463 U.S. 992, 1002-

1003 (1983). When a State argues to a sentencing jury that

future dangerousness is an aggravating sentencing factor,

however, “elemental due process” guarantees the capital de-

fendant “an opportunity to introduce evidence on this point.”

Skipper v. South Carolina, 476 U.S. 1, 5 n.1 (1986) (quoting

Gardner v. Florida, 430 U.S. 349, 362 (1977) (plurality

opinion)); see Simmons v. South Carolina, 512 U.S. 154, 174

(1994) (plurality opinion) (Ginsburg, J., concurring); see also

id. at 176 (O’Connor, J., concurring in the judgment). Indeed,

the Due Process Clause guards against the imposition of a

death sentence “on the basis of information” that a capital de-

me

fendant “had no opportunity to deny or explain.” Gardner,

430 U.S. at 362.

The state courts did not even attempt to square their re-

jection of Mr. Cherrix’s due process claim with these

authorities. The resulting decision, however, resulted in an

unlawful restriction on a capital defendant’s right to rebut the

prosecution’s allegation of future dangerousness. By effec-

tively preventing capital defendants from challenging the ba-

sis for a sentence of death, the state courts have rendered a

judgment wholly at odds with fundamental notions of due

process. Because Mr. Cherrix was denied the opportunity to

rebut the Commonwealth’s reliance on his purported future

dangerousness by presenting relevant evidence in rebuttal,

and because the state courts failed even to address the clear

constitutional violation presented, the writ should issue.

B. The Virginia Courts Violated Mr. Cherrix’s

Eighth Amendment Rights By Preventing Him

From Introducing Relevant Evidence In

Mitigation

The decision below, in addition to contravening Peti-

tioner’s due process rights, also resulted in the imposition of

cruel and unusual punishment in violation of the Eighth

Amendment, because the punishment rests on a record de-

void of the mitigation evidence Mr. Cherrix consistently

strove to introduce. The lower courts’ Eighth Amendment

violation constitutes an independent constitutional violation

fully warranting this Court’s discretionary review.

As noted supra, Mr. Cherrix unsuccessfully sought to

present to the sentencing jury the testimony of Mr. Shiflett,

several Virginia correctional officials, and other witnesses.

This evidence, when taken together with the testimony of the

expert penologist, would have permitted the jury to conclude

——————————EE

-15-

that Mr. Cherrix’s physical and psychological attributes miti-

gated the appropriate penalty for the alleged offense and

weighed in favor of a sentence of life imprisonment. The ex-

clusion of such evidence substantially diminished the reli-

ability of the sentencer’s determination to inflict the penalty

of death, in contravention of this Court’s Eighth Amendment

jurisprudence, as the applicable precedents make clear.

Acknowledging that a sentence of death is “qualitatively

different” from other forms of State punishment, this Court

has held “that the Eighth and Fourteenth Amendments re-

quire that the sentencer * * * not be precluded from consid-

ering, aS a mitigating factor, any aspect of a defendant’s char-

acter or record and any of the circumstances of the offense

that the defendant proffers as a basis for a sentence less than

death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality

opinion); see also Skipper v. South Carolina, 476 U.S. 1, 5

n.1 (1986). This rule, rooted in the principles underlying the

Eighth Amendment, “recognizes that ‘justice * * * requires

* * * that there be taken into account the circumstances of the

offense together with the character and propensities of the of-

fender.’” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)

(quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51,

55 (1937)).

In this case, the Supreme Court of Virginia incorrectly

concluded that the offered testimony was not mitigation evi-

dence because it had no “ ‘bearing on the defendant’s charac-

ter, prior record, or the circumstances of his offense.’” Cher-

rix, 513 S.E.2d at 653 (quoting Lockett, 438 U.S. at 605 n.12)

(Pet. App. 20a—21a). On this point, the Virginia high court

agreed with the trial court’s conclusion that “none of this evi-

dence concerns the history or experience of the defendant.”

Ibid. The court distinguished this Court’s decision in Skipper,

reasoning that Mr. Cherrix never offered evidence tending to

s“.

prove his ability to conform to prison life (although that was

in fact the import of Dr. Bulette’s testimony). See id. at 653

n.4 (Pet. App. 21a). The state court made no attempt to

square its holding with this Court’s express command that a

defendant may not be precluded from introducing “any aspect

of a defendant’s character or record and any of the circum-

stances of the offense that the defendant proffers as a basis

for a sentence less than death.” Lockett, 438 U.S. at 604 (em-

phasis added). This error violated the Eighth and Fourteenth

Amendments by denying the presentation of mitigation evi-

dence, thereby compromising the reliability of the jury’s sen-

tence of death.

In light of the testimony the jury actually heard, appropri-

ate mitigation evidence was necessary to prevent the jury

from being left with an incomplete appreciation of the facts.

Although Dr. Bulette, qualified as an expert in forensic psy-

chiatry, testified that Mr. Cherrix’s psychological propensities

permitted him to adapt and conform to a highly structured

environment, the jury was denied the proffered testimony of

the Virginia correctional officials and other witnesses, which

would have provided a complete portrait of the prison envi-

ronment as one dominated by structure. The proffer of

Mr. Shiflett’s testimony elaborated on this theme, and de-

scribed how Mr. Cherrix’s physical attributes would prevent

him from posing any threat to the other prisoners or officers.

Contrary to the Supreme Court of Virginia’s cursory con-

clusion, relegated to a footnote, the proffered testimony, con-

sistent with Skipper, Eddings, and Lockett, is relevant miti-

gating evidence as it relates to aspects of Mr. Cherrix’s

psychological and physical character that serve “as a basis for

a sentence less than death.” Lockett, 438 U.S. at 604. The ex-

clusion of the proffered testimony deprived Mr. Cherrix of

his constitutional right to present all relevant mitigation evi-

OOOO

«17 -

dence to the sentencing body. Unless reversed, the decision of

the courts below will place in grave jeopardy capital defen-

dants’ rights to present a sentencing jury with evidence sup-

porting a sentence other than death. Deprived of such infor-

mation, juries may readily choose a death sentence even in

marginal cases where a fuller presentation would have

yielded a different result. The writ should issue to forestall

these pernicious consequences of the decision below.

Il.

VIRGINIA’S DEATH PENALTY SENTENCING

STATUTE CONFLICTS WITH SETTLED

PRECEDENT AND UNDERMINES

CONSTITUTIONAL NORMS

Mr. Cherrix was sentenced to death under the provision

of Virginia’s capital sentencing statute, Va. Code Ann. § 19.2-

264.4, which authorizes a death sentence if the defendant’s

“conduct in committing the offense was outrageously or

wantonly vile, horrible, or inhuman, in that it involved tor-

ture, depravity of mind or aggravated battery to the victim.”

A. Virginia’s Capital Sentencing Provision Is

Unconstitutional, A Fatal Defect Not Cured By

The State’s Refusal To Give Constitutionally

Mandatory Limiting Instructions

Virginia’s capital sentencing provision reads precisely the

same as the Georgia statute this Court held unconstitutionally

vague in Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plu-

rality opinion). In Godfrey, this Court expressly held that, ab-

sent adequate clarifying instructions, the critical statutory

language common both to Virginia and Georgia’s statutes—

“outrageously or wantonly vile, horrible, or inhuman in that it

involved torture or depravity of mind, or an aggravated bat-

tery to the victim”—was unconstitutionally vague:

- 18-

There is nothing in these words, standing

alone, that implies any inherent restraint on

the arbitrary and capricious infliction of the

death sentence. A person of ordinary sensibil-

ity could fairly characterize almost every mur-

der as “outrageously wantonly vile, horrible

and inhuman.”

Godfrey, 446 U.S. at 429. Virginia’s sentencing statute is ex-

actly the same as Georgia’s and is unconstitutional on its face

for precisely the reasons this Court gave in Godfrey.’

Godfrey reaffirmed that adequate jury instructions may

salvage a sentencing statute that would otherwise be uncon-

stitutionally vague on its face. Decisions of this Court arising

from other States have likewise confirmed that, where ade-

quate limiting instructions are given, they may cure any con-

Stitutional infirmity in the applicable sentencing provision.

> Godfrey rests on the recognition that, to be constitutional, capital sen-

tencing provisions must be “carefully drafted” “carefully drafted” to en-

sure that “the sentencing authority is given adequate information and

guidance.” See Gregg v. Georgia, 428 U.S. 153, 195 (1976). Furman v.

Georgia, 408 U.S. 238 (1972), and its progeny make clear that the Con-

stitution requires this degree of clarity because vague language impermis-

sibly permits imposition of the death sentence in widely disparate circum-

stances. Clear boundaries are essential to ensure that “‘any decision to

impose the death sentence be, and appear to be, based on reason rather

than caprice or emotion.’” Godfrey, 446 U.S. at 433 (quoting Gardner v.

Florida, 430 U.S. 349, 358 (1977)). Cf. also Tuilaepa v. California, 512

U.S. 967, 971-972 (1994) (valid capital sentencing provision must re-

strict death-eligible crimes to those for which capital punishment is ap-

propriate by requiring aggravating circumstances applicable only to a

“subclass” of otherwise-eligible defendants, must not be unconstitution-

ally vague, and must circumscribe imposition of the death penalty via an

individualized, ad hoc assessment of the specific crime and related con-

siderations); City of Chicago v. Morales, — U.S. —, 119 S. Ct. 1849,

1859 (1999) (criminal statute may be unconstitutionally vague if it “may

authorize and even encourage arbitrary and discriminatory enforcement”).

-19-

For example, this Court’s approval of Georgia’s capital sen-

tencing guidelines depended critically on the presence of

adequate jury instructions. See Gregg v. Georgia, 428 U.S.

153, 201 (1976). See also, e.g., Shell v. Mississippi, 498 U.S.

1, 3 (1990) (“a limiting instruction can be used to give con-

tent to a statutory factor that ‘is itself too vague to provide

any guidance to the sentencer,’ only if the limiting instruc-

tion’s own ‘definitions are constitutionally sufficient,’ that is,

only if the limiting instruction itself ‘provide[s] some guid-

ance to the sentencer.’”) (Marshall, J., concurring) (quoting

Walton v. Arizona, 497 U.S. 639 (1990)). In Walton, this

Court approved Arizona’s common-sense instruction ex-

plaining that the term “depraved” in the state’s capital sen-

tencing statute meant that the defendant “ ‘relishes the mur-

der, evidencing debasement or perversion,’ or ‘shows an

indifference to the killing of the victim and evidences a sense

of pleasure’ in the killing.” Walton, 497 U.S. at 655.

Virginia, however, refuses to guarantee that jurors receive

any meaningful guidance beyond the mere words of the stat-

ute, which were held unconstitutionally vague in Godfrey. In

other words, Virginia’s jury instructions fail to cure the ambi-

guity this Court identified in the identically worded Georgia _

statute. Without such saving instructions, the jury is pre-

sented with an essentially unguided choice when determining

whether to impose the law’s most drastic and irreversible

punishment.* Because Virginia’s capital sentencing instruc-

tions fail to channel the jury’s deliberations, they fail to cure

the constitutional infirmity evident on the face of the Virginia

statute. |

* This concern is particularly pronounced in jury proceedings, where “it is

essential that the jurors be properly instructed regarding all facts of the

sentencing process.” Walton v. Arizona, 497 U.S. 639, 653 (1990) (distin-

guishing between sentencing by a jury and by a trial judge).

- 2) -

The Supreme Court of Virginia has made inconsistent

statements regarding whether it is necessary at all to instruct

the jury on the meaning of the vague terms in the capital

sentencing statute. The Virginia courts continue to rely on

state court decisions rendered before Godfrey—in other

words, before this Court made it pellucidly clear that the

vagueness infecting the Virginia statute is unconstitutional

unless cured by adequate instructions. Compare Smith v.

Commonwealth, 248 S.E.2d 135, 149 (Va. 1978) (attempting

to articulate definitions, albeit convoluted ones, of “depravity

of mind” and “aggravated battery”), cert. denied, 441 U.S.

967 (1979), with Clark v. Commonwealth, 257 S.E.2d 784,

790-791 (Va. 1979) (“the terms used in the statute are com-

monly used and each has an accepted meaning”; not reversi-

ble error to refuse to give instructions because jury needed no

instructions “to determine whether the conduct of Clark was

outrageously or wantonly vile, horrible, or inhuman in that it

involved depravity of mind or aggravated battery to the vic-

tim”), cert. denied, 444 U.S. 1049 (1980). Virginia has never

recognized the impact of Godfrey on its identically worded

capital sentencing statute and continues to apply pre-Godfrey

precedent to uphold death sentences based on inadequate in-

structions, or no instructions at all beyond the unconstitution-

ally vague words of the statute itself. See, e.g., Tuggle v.

Commonwealth, 323 S.E.2d 539, 552 (Va. 1984), vacated on

other grounds, 471 U.S. 1096 (1985) (no instruction beyond

words of statute); Justus v. Commonwealth, 266 S.E.2d 87,

92-93 (Va. 1980) (same).°

* Virginia juries in capital cases may receive instructions, however insuffi-

cient, on at most two out of the three elements—“depravity of mind” or

“aggravated battery”—that “define” the vileness factor. No routine jury

instruction is given to clarify the meaning of “torture” that warrants the

death penalty.

21.

Virginia capital defendants thus face great uncertainty,

caused by an absence of identifiable and enforceable stan-

dards, as to whether, or how, their particular jury may be in-

structed on the critical elements underlying a sentence of

death. This uncertainty confronting capital defendants in Vir-

ginia raises another constitutional concern. The lack of notice

as to what, if any, guidance a jury may receive as to whether a

defendant’s crime warrants death is inconsistent with the

protections of the Fourteenth Amendment. Cf. Simmons v.

South Carolina, 512 U.S. 154, 161-162 (1994) (failure to in-

form jury that petitioner was ineligible for parole violated

right to due process); Lankford v. Idaho, 500 U.S. 110, 127

(1991) (defendant did not receive due process where he had

no notice that judge might impose a death sentence). In

Lankford, this Court found that the adversarial process, which

a sentencing proceeding embodies, cannot function properly

without adequate notice. In the absence of such notice, “there

is an increased chance of error * * * and with that, the possi-

bility of an incorrect result.” Jbid.

These concerns apply equally to the Virginia courts’ re-

fusal to give a capital defendant notice as to the interpretation

of “vileness” against which he will have to mount a defense.

Virginia trial courts remain free on a case-by-case basis to de-

fine the statutory terms in novel and inconsistent ways. The

present situation is flatly incompatible with this Court’s di-

rective in Simmons that “[t]he Due Process Clause does not

allow the execution of a person ‘on the basis of information

which he had no opportunity to deny or explain.’ Simmons,

° This disparity also presents equal protection concerns. As this Court

noted in Furman, “[a)ny law which is nondiscriminatory on its face may

be applied in such a way as to violate the Equal Protection Clause of the

Fourteenth Amendment.” 408 U.S. at 257 (Douglas, J., concurring) (in-

ternal citations omitted).

-%.

512 U.S. at 161 (quoting Gardner v. Florida, 430 U.S. 349,

362 (1977)). Indeed, such due process considerations are of

heightened importance in capital cases such as this one, as

this Court has recognized:

The penalty of death is qualitatively different

from a sentence of imprisonment, however

long. Death, in its finality, differs more from

life imprisonment than a 100-year prison term

differs from one of only a year or two. Be-

cause of that qualitative difference, there is a

corresponding difference in the need for reli-

ability in the determination that death is the

appropriate punishment in a specific case.

Woodson v. North Carolina, 428 U.S. 280, 305 (1976).

This case fully illustrates the uncertain regime with which

capital defendants must contend in Virginia given the failure

of the Commonwealth’s courts to adhere to this Court’s deci-

sion in Godfrey. In this case, the jury instructions merely par-

roted the terms of the statute—in other words, simply re-

peated the same _ statutory terms this Court held

unconstitutionally vague in Godfrey. The instructions stated:

Before the penalty can be fixed at death, the

Commonwealth must prove beyond a reason-

able doubt at least one of the following aggra-

vating circumstances * * * [future dangerous-

ness] or, two, that his conduct in committing

the offense was outrageously or wantonly vile,

horrible, or inhuman in that it involved tor-

ture, depravity of mind, or aggravated battery

to the victim beyond the minimum necessary

to accomplish the act of murder. * * * De-

pravity of mind is defined as a degree of moral

-%3.-

turpitude and physical debasement™! surpass-

ing that inherent in the definition of ordinary

legal malice and premeditation.

(JA 1779-1780, 1782). These instructions merely repeated

the terms of Virginia’s capital sentencing statute and the pro-

foundly unintelligible “depravity of mind” instruction the

Supreme Court of Virginia suggested in Smith (but held un-

necessary in Clark). The jury’s decision to sentence Mr.

Cherrix to death is thus constitutionally invalid, because it

relied on a “description so vague as to leave the sentencer

without sufficient guidance for determining the presence or

absence of [the aggravating circumstance].” Espinosa v.

Florida, 505 U.S. 1079, 1081 (1992). The trial court’s in-

structions were neither tailored to the case nor consistent with

constitutional dictates. Merely providing the jury the Smith

depravity of mind instruction not only failed to channel their

discretion, it exacerbated their confusion. As many courts

have recognized, “[vJague terms do not suddenly become

clear when they are defined by reference to other vague

terms.” Turner v. Williams, 35 F.3d 872, 881 (4th Cir. 1994)

(citing Cartwright v. Maynard, 822 F.2d 1477, 1489 (10th

Cir. 1987) (en banc), aff’d, 486 U.S. 356 (1988)), cert. de-

nied, 514 U.S. 1017 (1995). “Legal malice” is a term of art

’ These instructions derive from Smith, which refers to “psychical” de-

basement. The annotations to Virginia’s Model Jury Instructions, how-

ever, refer to “physical” debasement. Instruction No. 34.122, at I-586

(1993 replacement ed.). The written jury instructions in this case referred

to “psychical” debasement. (JA 338). The trial transcript states “physical”

debasement, and it is unclear whether this is merely a typographic error, a

misreading of Smith or the written instruction, or a misguided reliance

upon the model instructions. Whatever the rationale for these discrepan-

cies, they plainly demonstrate the incoherence of this charge and highlight

the absurdity of pretending that these words actually have some discerni-

ble content and make sense to lay jurors.

-%-

that suggests a meaning distinct from any “common-sense”

interpretation. The terms “turpitude” and “physical [or psy-

chical] debasement,” similarly, cannot be presumed to have

any commonly understood content, and the court’s use of

these terms could hardly have ameliorated the harm to

Mr. Cherrix resulting from the fatal ambiguity in the statutory

text.

One of the core purposes of judicial review is to eliminate

confusion and uncertainty that produce inconsistent out-

comes. Only this Court can resolve disparities in Virginia and

other states in the application of the death penalty, resulting

both from the unconstitutionally vague terms of Virginia’s

capital sentencing statute and from Virginia’s refusal to pro-

vide consistent and constitutionally sufficient limiting in-

structions. Fidelity to the Eighth Amendment’s prohibition on

cruel and unusual punishment and notions of due process re-

quires no less. This Court’s review is manifestly warranted to

supply the clarity the Virginia courts have neglected to estab-

lish in this critical area of nationwide concern.

B. The Jury Instructions Also Did Not Require

Unanimity On The Basis For The Sentence Of

Death

This Court’s recent decision in Richardson v. United

States, — U.S. —, 119 S. Ct. 1707 (1999), highlights an ad-

ditional flaw in the proceedings below. Due to the recent

vintage of the Richardson decision, which repudiated a line

of authorities that previously had governed in the geographi-

cal region that included Virginia,’ the Virginia courts have

* Richardson resolved a conflict among the Circuits concerning the need

for a unanimous jury verdict as to the particular conduct that satisfied the

statutory term, “series of violations.” Among the decisions this Court re-

jected was one rendered by the Circuit that includes the State of Virginia

(and which itself arose from the Eastern District of Virginia), United

ss

not yet passed on this issue, and Petitioner respectfully sug-

gests that the issue may be appropriate for this Court’s GVR

procedure.

To secure a death sentence in Virginia, the Common-

wealth must prove that (1) the defendant’s acts constituted a

continuing serious threat to society, or (2) the defendant’s

conduct was outrageously or wantonly vile, horrible, or in-

human in that it involved (a) torture, (b) depravity of mind, or

(c) aggravated battery to the victim. Va. Code Ann. § 19.2-

264.2. The instructions in this case merely parroted these

statutory alternatives:

[T]here is a probability that [the defendant}

would commit criminal acts of violence that

would constitute a continuing threat to soci-

ety; or * * * that his conduct in committing

the offense was outrageously or wantonly vile,

horrible and inhuman in that it involved tor-

ture, depravity of mind or aggravated battery

to the victim beyond the minimum necessary

to accomplish the act of murder.

(JA 1779-1780).

The constitutional difficulty with the Virginia courts’ de-

cision, however, is that the courts gave the jury three alterna-

tive routes—“torture,” “depravity of mind,” or “aggravated

battery”—to reach the conclusion of “vileness” necessary to

justify a penalty of death. Putting aside for the moment the

inadequate instructions the court gave to explain these statu-

tory terms (as described supra), the decision is further flawed

because the jury was not required unanimously to agree

which route they took to their conclusion.

States v. Hall, 93 F.3d 126 (4th Cir. 1996), cert. denied, 519 U.S. 1151

(1997).

- 2% -

It is, of course, hornbook law that the “prosecution must

convince the trier of all the essential elements of guilt” and

that “[n]o man should be deprived of his life under the forms

of law unless the jurors who try him * * * say that the evi-

dence before them is sufficient to show beyond a reasonable

doubt the existence of every fact necessary to constitute the

crime charged.” Jn re Winship, 397 U.S. 358, 362-363

(1970). Richardson gave content to this requirement in the

context of a statute that, like the Virginia capital sentencing

provision, allowed the jury to choose from several alterna-

tives when defining the criminal conduct at issue. In

Richardson, the relevant statute, 18 U.S.C. § 848, criminal-

ized the operation of a continuing criminal enterprise, and re-

quired proof that the defendant engaged, inter alia, in “a con-

tinuing series of violations” of the federal drug laws. The

prosecution submitted evidence of a number of possible nar-

cotics violations by the defendant that could constitute the

requisite “series of violations,” but the lower courts ruled that

the jury did not have to agree unanimously which of these

underlay their conclusion that the defendant had engaged in a

“series of violations.” This Court reversed, holding that the

“tradition of requiring juror unanimity” strongly supported a

rule requiring the jury to agree, not only that the defendant

had engaged in a “series of violations,” but also to agree

which of the several alternatives presented to them collec-

tively formed the “series.” See Richardson, 119 S. Ct. at

1710-1713.

The courts of Virginia and other states previously have

held that the jury need not unanimously agree on which ele-

ment of “vileness” underlay a sentence of death. See, e.g.,

Clark v. Commonwealth, 257 S.E.2d 784, 791 (Va. 1979)

(citing authorities principally from Georgia); Briley v. Bass,

584 F. Supp. 807, 838 (E.D. Va.) (this Court “has not held

ee

27 «

jury unanimity on the sub-determination of aggravation is a

consutuuional requirement”), aff’d, 742 F.2d 155 (4th Cir.),

sert. denied, 469 U.S. 893 (1984). Other states, although not

Virginia, have developed a body of jurisprudence concerning

the need for unanimity when a capital sentencing jury is al-

lowed to choose from multiple alternatives in finding an ag-

gravating circumstance sufficient to support the penalty of

death. Cf., e.g., Le v. State, 947 P.2d 535, 552-553 (Okla.

Crim. App. 1997), cert. denied, 118 S. Ct. 2329 (1998); Wade

v. State, 368 S.E.2d 482, 488 (Ga. 1988); Wilson v. Zant, 290

S.E.2d 442, 453 (Ga.), cert. denied, 459 U.S. 1092 (1982).

Richardson calls into doubt the implicit position of the

Virginia state courts that a capital sentencing jury need not

unanimously agree which of the alternative statutory aggra-

vating circumstances underlies their decision to impose a

penalty of death. At a minimum, the writ should issue to

permit the state courts to clarify whether Virginia practice

comports with the constitutional standards this Court recently

enunciated in Richardson.

CONCLUSION

Mr. Cherrix has been convicted of a capital offense on the

basis of insufficient and inadmissible evidence, in the context

of a statute that is unconstitutionally vague, and has been

sentenced to death without the benefit of testimony relevant

to mitigation and rebutting future dangerousness, on instruc-

tions that did not guarantee a unanimous jury verdict. The

decision below effectively uprooted long-settled doctrines

and reached an insupportable result. Grave consequences to

the administration of justice, not only in the State of Virginia

but in the other States whose precedents have mutually sup-

ported, and been supported by, the decisions of Virginia

courts, will result if the decision below is permitted to stand.

- 28 -

For these reasons, the petition for a writ of certiorari should

be granted.

Respectfully submitted.

Lois G. Williams

Counsel of Record

Timothy K. Armstrong

Julie K. Brof

Jeanne-Marie S. Raymond

Jason D. Smith

HOWREY & SIMON

1299 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 783-0800

Counsel for Petitioner

Brian Lee Cherrix

JULY 1999

la

BRIAN LEE CHERRIX

COMMONWEALTH OF VIRGINIA

Record Nos. 981798, 982063

SUPREME COURT OF VIRGINIA

257 Va. 292; 1999 Va. LEXIS 45; 513 S.E.2d 642

February 26, 1999, Decided

Charles R. Burke (A. Theresa Bliss, on brief), for appellant.

Donald R. Curry, Senior Assistant Attorney General (Mark L.

Earley, Attorney General, on brief), for appellee.

Present: All the Justices

OPINION BY JUSTICE ELIZABETH B. LACY

In this appeal, we review the capital murder conviction

and death penalty imposed upon Brian Lee Cherrix, along

with his convictions for forcible sodomy, two counts of using

a firearm in the commission of a felony, and possessing a

firearm after being convicted of a felony.

2a

I. Facts

On the night of January 27, 1994, 23 year-old Tessa Van

Hart was working as a pizza delivery person at a pizza deliv-

ery restaurant on Chincoteague Island. A man telephoned the

restaurant and ordered a pizza to be delivered to an address in

the “Small Piney Island” area of Chincoteague. Around 7:45

p.m., Van Hart left the restaurant to deliver the pizza.

When Van Hart failed to return from the delivery, the

Chincoteague police were notified, and they began a search

for Van Hart. Shortly after midnight on January 28, the police

found Van Hart’s vehicle behind a vacant home approxi-

mately one mile from the Small Piney Island area. Van Hart’s

body was found in the back seat.

An autopsy revealed that Van Hart died from two gunshot

wounds to the head. The autopsy also showed that she had

been sodomized and had suffered bruises and abrasions on

her forehead, cheek, nose, and mouth sometime around the

time of death. In the yard of the house to which Van Hart was

to have delivered the pizza on January 27, the police found

two bloodstains which DNA typing showed to be consistent

with Van Hart’s blood.

The murder of Tessa Van Hart remained unsolved for

over two years. On June 3, 1996, however, Brian Lee Cher-

rix, who was in the Accomack County Jail pending sentenc-

ing on unrelated charges, contacted the Accomack County

Sheriff, Robert Crockett. Cherrix said that he had information

concerning the Van Hart murder that he would share with po-

lice in return for leniency on his pending sentencing. Cherrix

told Crockett that his cousin, Robert Birch, III, had killed Van

Hart. Cherrix claimed that Birch had told him in February

1994 that he, Birch, had lured Van Hart to an unoccupied

residence by ordering a pizza, raped and shot her, and then

3a

discarded the rifle used in the crime in a nearby creek. Birch

died in 1995.

The state police began an underwater search of the creek

for the murder weapon. When Cherrix was informed that the

dive team had not recovered the rifle, he agreed to go to

Chincoteague to show the officers the location of the rifle ac-

cording to what Birch supposedly had told him. At the search

site, Cherrix directed Trooper Mark Fowler to the place he

claimed that Birch had told him he had thrown the rifle.

Fowler testified at trial that, while Cherrix maintained that he

was only relating facts imparted to him by Birch, Cherrix

would occasionally lapse into the use of the first person in

describing how and where the rifle came to be located in the

creek. The divers recovered a .22 caliber Marlin rifle at the

location indicated by Cherrix.

Later that same day, Cherrix was taken to the City of

Chesapeake, where he was interviewed by state police inves-

tigator Lloyd Dobbs. After being advised of his Miranda

rights and signing a written waiver of those rights, Cherrix

gave several differing versions of the story Birch supposedly

had told him, all the while using hand and arm gestures to

demonstrate how Birch supposedly had disposed of the rifle.

Sheriff Crockett then took Cherrix back to Accomack County

Jail.

Although Birch had died in 1995, the police conducted an

investigation of his whereabouts on the night of the murder,

and they concluded that he was not a suspect in the Van Hart

murder. In August 1996, after having been sentenced on un-

related charges to 20 years imprisonment with all but nine

years suspended, Cherrix was transferred to the custody of

the Virginia Department of Corrections to serve his sentence.

4a

On April 16, 1997, Cherrix was returned to Accomack

County Jail on charges of uttering and grand larceny. During

the drive from Brunswick Correctional Center to the Acco-

mack County Jail, Chincoteague Assistant Police Chief Ed-

ward Lewis interviewed Cherrix regarding the Van Hart mur-

der. After Lewis advised Cherrix of his Miranda rights and

Cherrix agreed to discuss the matter, Cherrix told Lewis yet a

different version of what he claimed had happened on the

night of the murder, still maintaining that Birch had commit-

ted the murder.

On April 17, 1997, counsel was appointed for Cherrix’s

uttering and grand larceny charges. On April 25, 1997, Cher-

rix submitted a written request to the Accomack County Jail

authorities asking to see Lewis. Lewis went to the jail to see

Cherrix. After Lewis advised Cherrix of his Miranda rights

and Cherrix reaffirmed that he wanted to speak with Lewis,

Cherrix confessed to the murder and sodomy of Van Hart.

Cherrix then accompanied Lewis and an Accomack County

sheriff’s deputy to Chincoteague, where he directed the offi-

cers on a tour of various locations that he had described in his

confession.

II. Proceedings

Cherrix was indicted for capital murder, forcible sodomy,

two counts of using a firearm in the commission of those of-

fenses, and one count of being a felon in possession of a fire-

arm. Code §§ 18.2-31, -67.1, -53.1, and -308.2. At the con-

clusion of the guilt stage of a bifurcated jury trial conducted

pursuant to Code §§ 19.2-264.3 and -264.4, the jury con-

victed Cherrix on all counts.

After hearing evidence on the issue of punishment, the

jury sentenced Cherrix to death for the capital murder, life

imprisonment for the forcible sodomy, a total of eight years

Sa

for using a firearm in the commission of those offenses, and

five years for possessing a firearm after being convicted of a

felony. Cherrix’s death sentence was based upon the jury’s

finding of both “future dangerousness” and “vileness.” See

Code § 19.2-264.4. The trial court reviewed the presentence

report and victim impact statements and imposed all of the

sentences fixed by the jury.

Cherrix appeals his capital murder conviction, Record

No. 981798. We have certified Cherrix’s appeal of his non-

capital convictions from the Court of Appeals, Record No.

982063, and have consolidated the two appeals.

Ill. Issues Previously Decided

Cherrix filed a pre-trial motion asking the trial court to

declare the Virginia death penalty statutes unconstitutional on

a number of grounds. He also filed pre-trial motions asking

the trial court to allow the use of a jury questionnaire, to al-

low individual sequestered voir dire, and to supplement the

trial court’s voir dire with questions submitted by defense

counsel in order to ascertain possible juror bias necessary to

empanel an impartial jury.' He now appeals the trial court’s

denial of those motions, raising issues that we have consid-

ered and rejected in previous cases:

(1) Virginia’s two statutory aggravating circumstances of

“future dangerousness” and “vileness” are not unconstitu-

tionally vague. Beck v. Commonwealth, 253 Va. 373, 387,

484 S.E.2d 898, 907, cert. denied, — U.S. —, 118 S. Ct. 608

(1997)(“vileness”); Clagett v. Commonwealth, 252 Va. 79,

86, 472 S.E.2d 263, 267 (1996), cert. denied, 519 U.S. 1122,

' The trial court actually granted Cherrix’s request for individually se-

questered voir dire, but limited its inquiry to the issues of “publicity and

whether a juror would consider the death penalty.”

6a

136 L. Ed. 2d 856, 117 S. Ct. 972 (1997)(“future

dangerousness’”).

(2) Virginia’s penalty-stage instructions adequately in-

form the jury regarding the concept of “mitigation.” Swann v.

Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200, cert.

denied, 513 U.S. 889, 130 L. Ed. 2d 158, 115 S. Ct. 234

(1994).

(3) The use of unadjudicated conduct to prove “future

dangerousness” without proof of such conduct beyond a rea-

sonable doubt is not unconstitutional. Goins v. Common-

wealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert. denied,

519 U.S. 887, 136 L. Ed. 2d 154, 117 S. Ct. 222 (1996).

(4) Allowing, but not requiring, a trial judge to reduce a

sentence of death to life imprisonment on a showing of “good

cause” is not unconstitutional. Breard v. Commonwealth, 248

Va. 68, 76, 445 S.E.2d 670, 675, cert. denied, 513 U.S. 971,

130 L. Ed. 2d 353, 115 S. Ct. 442 (1994).

(5) Consideration of hearsay evidence or information in a

presentence report during the sentencing phase of a capital

murder case is not unconstitutional. Goins, 251 Va. at 453,

470 S.E.2d at 122; O’Dell v. Commonwealth, 234 Va. 672,

701-02, 364 S.E.2d 491, 507-08, cert. denied, 488 U.S. 871

(1988).

(6) The review provided by this Court on direct appeal in

capital cases is not unconstitutional. Mickens v. Common-

wealth, 252 Va. 315, 320, 478 S.E.2d 302, 306 (1996), cert.

denied, 520 U.S. 1269, 138 L. Ed. 2d 202, 117 S. Ct. 2442

(1997).

(7) Capital murder defendants do not have the constitu-

tional right to individual and sequestered voir dire of pro-

spective jurors. Stewart v. Commonwealth, 245 Va. 222, 229,

7a

427 S.E.2d 394, 399, cert. denied, 510 U.S. 848, 126 L. Ed.

2d 105, 114 S. Ct. 143 (1993).

(8) Capital murder defendants do not have the constitu-

tional right to require the trial court to mail a questionnaire to

all potential jurors. Strickler v. Commonwealth, 241 Va. 482,

489-90, 404 S.E.2d 227, 232, cert. denied, 502 U.S. 944, 116

L. Ed. 2d 337, 112 S. Ct. 386 (1991).

We find nothing in Cherrix’s arguments here that war-

rants a change in our previous positions.

IV. Pre-Trial Issues

A. Failure to Suppress Cherrix's Confession

Prior to trial, Cherrix filed a motion asking the trial court

to suppress all of his statements to the police “on or after

June 7, 1996, in that on each and every occasion the state-

ments secured from the defendant, if any, were obtained

while the defendant was in custody and denied his right to

counsel.”

At the suppression hearing, Cherrix testified that he re-

quested counsel in the presence of Sheriff Crockett on the

return trip from Chesapeake to Accomack on June 7, 1996,

and that he invoked his right to counsel when he was being

interrogated by Lewis on the trip from Brunswick Correc-

tional Center to Accomack County Jail on April 16, 1997. He

admitted that he had asked to speak with Lewis on April 25,

but he denied that Lewis advised him of his Miranda rights

before interrogating him on that date.

Sheriff Crockett testified that, while in Chesapeake on

June 7, 1996, Cherrix had been advised of his Miranda rights

and that he signed a written waiver. He also testified that

Cherrix never invoked his right to counsel or his right to re-

main silent during the return trip to Accomack.

8a

Lewis testified that on April 16, 1997, he advised Cherrix

of his Miranda rights, and that Cherrix elected to speak to

him. He denied that Cherrix, “at any time ... on April 16,”

requested counsel or otherwise indicated that he wished to

stop answering questions. Finally, Lewis testified that when

he went to see Cherrix at the Accomack County Jail on April

25 pursuant to Cherrix’s request, he again advised Cherrix of

his Miranda rights, and that Cherrix never indicated on that

date that he wished to have counsel present or that he wished

to stop answering questions.

Following the suppression hearing, the trial court denied

Cherrix’s motion to suppress his confession. On appeal,

Cherrix claims that he clearly invoked his right to counsel on

April 16, that interrogations nevertheless continued without

counsel being provided, in violation of his Fifth Amendment

rights, and that the statements he made during those interro-

gations were thus inadmissible. See Miranda v. Arizona, 384

U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); Edwards

v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880

(1981).? Cherrix contends that the trial court’s denial of his

motion to suppress the confession therefore constituted re-

versible error. We do not agree.

Admissibility of a defendant’s statements is an issue to be

decided by the trial court, which evaluates the credibility of

? Although Cherrix does not explicitly argue that the admission of his con-

fession violated his Sixth Amendment right to counsel, he does make re-

peated references to the fact that counsel had been appointed to him on

unrelated charges prior to his being interrogated on April 25. However, as

the Commonwealth points out, the Sixth Amendment right to counsel is

charge-specific and does not “travel with a defendant and attach [itself] to

any other crimes .. . .” Eaton v. Commonwealth, 240 Va. 236, 252, 397

S.E.2d 385, 394 (1990), cert. denied, 502 U.S. 824, 116 L. Ed. 2d 60, 112

S. Ct. 88 (1991).

9a

the witnesses, resolves any conflicts in the testimony, and

weighs the evidence as a whole. Watkins v. Commonwealth,

229 Va. 469, 477, 331 S.E.2d 422, 429 (1985), cert. denied,

475 U.S. 1099, 89 L. Ed. 2d 903, 106 S. Ct. 1503 (1986). Be-

fore admitting statements made by a defendant during custo-

dial interrogation, the trial court must determine whether the

defendant knowingly and intelligently relinquished and aban-

doned his rights. See id. The trial court’s determination is the

resolution of a question of fact based on the totality of the

circumstances, Schneckloth v. Bustamonte, 412 U.S. 218,

226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); Watkins, 229

Va. at 477, 331 S.E.2d at 430, and will not be disturbed on

appeal unless plainly wrong. Jones v. Commonwealth, 228

Va. 427, 441, 323 S.E.2d 554, 561 (1984), cert. denied, 472

U.S. 1012, 86 L. Ed. 2d 728, 105 S. Ct. 2713 (1985).

Here, the record supports the trial court’s admission into

evidence of Cherrix’s statements to the police. Lewis testified

unequivocally that he read Cherrix his Miranda rights on

April 16 and April 25, and that Cherrix never asked for coun-

sel on either date. Cherrix testified to the contrary; however,

the trial court was in a position to evaluate the credibility of

witnesses and its decision to accept Lewis’ testimony and re-

ject Cherrix’s testimony is amply supported by the record.

See Watkins, 229 Va. at 477, 331 S.E.2d at 430.

B. Failure to Disclose Exculpatory Material

Prior to trial, the trial court accepted the Common-

wealth’s assertion that all discovery requirements had been

satisfied and declined to rule on Cherrix’s motion for discov-

ery. At that time, the Commonwealth had a written statement

from Cherrix’s grandmother asserting that Cherrix was at

home on the night of Van Hart’s murder and that he placed a

telephone call to his wife “around 8:00 o’clock or so.” The

10a

Commonwealth had not disclosed this written statement to

Cherrix.

At trial, Cherrix’s grandmother testified as an alibi wit-

ness for him and stated that Cherrix placed a telephone call to

his wife at 8:15 on the night of the murder and that the call

went on “a long while.” On cross-examination, she testified

that she had been interviewed by a police officer, but that she

could not remember what she told the officer. The Common-

wealth subsequently called the interviewing officer as a re-

buttal witness and asked him to read the statement signed by

Cherrix’s grandmother. Cherrix objected to the admission of

the statement, asserting that it contained exculpatory material

which should have been disclosed by the Commonwealth

prior to trial. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed.

2d 215, 83 S. Ct. 1194 (1963). The trial court overruled Cher-

rix’s objection and admitted the written statement.

On appeal, Cherrix asserts that his knowledge of the in-

formation contained in the statement does not excuse the

Commonwealth’s failure to disclose the statement, but shows

a lack of good faith and violates the due process clause under

Brady. We disagree.

The disclosure requirement imposed by Brady applies to

material exculpatory evidence. Exculpatory evidence is mate-

rial if there is a reasonable probability that the outcome of the

proceeding would have been different had the evidence been

disclosed to the defense. United States v. Bagley, 473 U.S.

667, 682, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985); Robinson

v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164

(1986). In calling his grandmother as an alibi witness, Cher-

rix demonstrated that he and his counsel knew about and re-

lied upon her testimony regarding his presence at home on

the night of the murder and the telephone call he made to his

lla

wife. The content of her written statement was, as he admits,

“reasonably known” and “consistent with the defense case.”

The written statement of the grandmother’s testimony did

not change the substance of the information known to the de-

fense, and the failure to disclose the fact that she had exe-

cuted a written version of her testimony did not deprive Cher-

rix of material exculpatory information in violation of Brady.

See Castillo v. Johnson, 141 F.3d 218, 223 (Sth Cir.), cert.

denied, — U.S. —, 119 S. Ct. 28 (1998)(prosecution has no

obligation to produce information already known to defense).

Accordingly, the trial court did not err in overruling Cherrix’s

objection and admitting the statement into evidence.

V. Guilt Phase

A. Reading and Admission of Statement

During the Commonwealth’s direct examination, Lewis

related the oral confession Cherrix made during their April

25 conversation. Lewis then testified that he briefly left the

room after Cherrix made the oral confession, with the ex-

pectation that Cherrix would write out and sign a written con-

fession. When Lewis returned, however, Cherrix had not

done so.

Lewis testified that he then initiated “a question and an-

swer session” with Cherrix, in which he asked Cherrix sev-

eral questions concerning the murder, wrote down each ques-

tion as he had asked it, and then wrote down Cherrix’s

response to each question “word for word.” Lewis testified

that he then read Cherrix’s answers back to him, and that

Cherrix acknowledged the accuracy of each written response

before Lewis would proceed to the next question. When all

the questions and answers were complete, Lewis asked Cher-

rix to sign the document, but Cherrix refused.

12a

After Lewis testified about the procedure used in the

“question and answer session,” he then proceeded to read

each question and answer to the jury. Cherrix objected, taking

the position that, because the “question and answer” docu-

ment was not signed, it was “nothing more than a continuing

oral statement at which time the officer may have taken

notes.” Cherrix asserted that since the document was merely

Lewis’ notes of the conversation, Lewis should only be per-

mitted to refer to it to refresh his recollection, but not to read

directly from it.

The trial court overruled Cherrix’s objection and permit-

ted Lewis to read each question and answer. Cherrix then

raised an objection to the admission of the document into

evidence as an exhibit, but the trial court deferred ruling until

after Lewis finished testifying. The Commonwealth moved to

admit the document following Lewis’ direct examination, and

the trial court again deferred its ruling pending cross-

examination of Lewis by the defense. The record bears no in-

dication that the document was thereafter admitted as an ex-

hibit; however, the document was made a part of the record

because Cherrix attached it to a post-trial motion.

On appeal, Cherrix renews his argument that the “ques-

tion and answer” document is merely Lewis’ notes. He asserts

that a document must be admitted into evidence as an exhibit

if it is to be read to the jury by a witness, and that the only

exception to this rule is the hearsay exception of “past recol-

lection recorded.” Cherrix concludes that, because the Com-

monwealth did not meet the foundational requirements for

introduction of “past recollection recorded” material, the trial

court erred by permitting Lewis to read from the “question

and answer’ document. We disagree.

Contrary to Cherrix’s assertion that the “question and an-

swer” document represented Lewis’ notes, the trial court

on wslett Aas a Dal ee anna ae

13a

found that the document represented Cherrix’s own state-

ments:

[I}n all of the other statements that have come

in in this case, they have been statements that

were oral and that were testified to by the wit-

ness primarily from memory with him from

time to time referring to notes to refresh his

recollection, but in this case it is a very differ-

ent set of circumstances. The witness has

Stated that he specifically referred—that he

specifically wrote out a question. Specifically

asked a question. Specifically wrote down

word for word the answer and reviewed it with

the defendant. .. .

(Emphasis added.) As characterized by the trial court, then,

the “question and answer” document was elevated to the

status of a written confession.

There can be no question but that a written confession is

admissible into evidence. Confessions, whether oral or writ-

ten, are admissible against a criminal defendant under the

“party admission exception” to the hearsay rule. Quintana y.

Commonwealth, 224 Va. 127, 148, 295 S.E.2d 643, 654

(1982), cert. denied, 460 U.S. 1029, 75 L. Ed. 2d 501, 103 S.

Ct. 1280 (1983); Land v. Commonwealth, 211 Va. 223, 229,

176 S.E.2d 586, 590-91 (1970). This is true even if the writ-

ten confession is unsigned, as long as the defendant under-

stood and adopted its substance. Wong Sun v. United States,

371 U.S. 471, 491, 9 L. Ed. 2d 441, 83 S. Ct. 407

(1963)(“The fact that the statement was unsigned, whatever

bearing this may have upon its weight and credibility, does

not render it inadmissible”). Because the “question and an-

swer” document was admissible as a confession, the failure

l4a

of the Commonwealth to lay a foundation for its admission

under the “past recollection recorded” exception is irrelevant.

Although the “question and answer” document could

have been admitted into evidence as an exhibit and would

have been the best evidence of Cherrix’s confession, see

McDaniel v. Commonwealth, 183 Va. 481, 32 S.E.2d 667

(1945), Cherrix objected to its admission as an exhibit at

trial. Therefore, he cannot now argue that the trial court erred

in allowing the confession to be admitted in secondary

form—through Lewis’ reading it into evidence. For these rea-

sons, there was no error in the trial court’s decision to permit

Lewis to read from the “question and answer” document

during his testimony.

B. Motion to Set Aside the Verdict

Cherrix argues that the trial court erred in denying his

motion to set aside the verdict as contrary to the law and evi-

dence because the Commonwealth failed to prove the corpus

delicti beyond a reasonable doubt. We disagree.

In every criminal prosecution, the Commonwealth must

prove the element of corpus delicti, that is, the fact that the

crime charged has been actually perpetrated. Maughs v. City

of Charlottesville, 181 Va. 117, 120, 23 S.E.2d 784, 786

(1943). Further, if the accused has fully confessed that he

committed the crime, then only slight corroboration of the

confession is required to establish corpus delicti beyond a

reasonable doubt. Jackson v. Commonwealth, 255 Va. 625,

646, 499 S.E.2d 538, 551 (1998).

Cherrix was charged with capital murder, forcible sod-

omy, use of a firearm in the commission of those offenses,

and being a felon in possession of a firearm. Cherrix fully

confessed to having committed these crimes, and the record

15a

reveals that the Commonwealth produced considerably more

than slight evidence to corroborate Cherrix’s confession.

As discussed above, Van Hart’s dead body was found

with two .22 caliber gunshot wounds to the head. The

autopsy revealed recent penetration of the anus and signs of

blunt force trauma to the head shortly before death. This evi-

dence sufficiently corroborates Cherrix’s statements that he

sodomized Van Hart and shot her to death.

Furthermore, Christopher Fox, an acquaintance of Cher-

rix, identified the .22 caliber rifle found by the police, at the

exact location indicated by Cherrix, as the rifle Fox had sold

to Cherrix. Cherrix’s former wife also identified the rifle as

one Cherrix once owned. The Commonwealth also estab-

lished that Cherrix was a convicted felon at the time of the

offense. This evidence sufficiently corroborates the commis-

sion of the firearm offenses. Accordingly, the trial court did

not err in denying Cherrix’s motion to set aside the verdict.

_ C. Jury Instructions

At the conclusion of the guilt stage of the trial, Cherrix

proffered the following jury instruction:

If you believe that Brian Lee Cherrix did not

freely and voluntarily give a statement to law

enforcement officers concerning his alleged

involvement in the sodomy and murder of

Tessa Van Hart, then you may give any such

statement as much or as little credibility as

you deem appropriate.

The credibility and weight of any statements

presented to the jury as having been made by

the defendant are submitted for your consid-

eration along with all the other evidence. The

16a

weight, the credibility, the sufficiency are

questions for determination by you the jury.

The trial court granted the second paragraph of the instruc-

tion but refused to grant the first paragraph on the ground that

there was no evidence to support a conclusion by the jury that

Cherrix’s statements to police were involuntary. The trial

court also granted a “general” instruction, advising the jury of

its role in assessing the credibility of witnesses and the

weight of evidence.

On appeal, Cherrix claims that a general instruction on

credibility was insufficient to properly inform the jury of their

role in assessing the voluntariness of Cherrix’s confession,

and that, therefore, the trial court erred in refusing his in-

struction regarding the voluntariness of his statements to po-

lice. After reviewing the record, however, we find no error in

the trial court’s denial of Cherrix’s proffered instruction.

While it is true that the trial court’s pre-trial determina-

tion that a defendant’s statements are admissible in evidence

does not preclude the defendant from proving at trial that

those statements were made involuntarily, see Jackson v.

Commonwealth, 193 Va. 664, 674, 70 S.E.2d 322, 328

(1952)(“Admissibility of confession is for trial court but its

weight and value are for the jury.”), it is also well established

that a defendant is not entitled to a jury instruction unless it is

supported by more than a scintilla of evidence. Common-

wealth vy. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76

(1998).

Cherrix testified at a pre-trial suppression hearing that the

police had violated his Miranda rights; however, he elected

not to testify at trial, and the evidence presented to the jury

was undisputed that Cherrix’s statements to police were pre-

ceded by voluntary and intelligent waivers of those rights.

17a

Furthermore, the trial court not only gave a “general” in-

struction on the jury’s role in assessing credibility, but also

granted the instruction contained in the second paragraph

above, which specifically relates to the weight and credibility

of statements “having been made by the defendant.” Ac-

cordingly, we conclude that the jury was adequately apprised

of its role, and that the trial court properly refused Cherrix’s

proffered instruction.

VI. Sentencing Phase

A. Mental Health Expert

Cherrix argues that the trial court erred in denying him an

adequate and competent mental health expert, as required by

Code § 19.2-264.3:1. That statute provides, in relevant part:

The mental health expert appointed pursuant

to this section shall be (i) a psychiatrist, . . .

who has successfully completed forensic

evaluation training as approved by the Com-

missioner of Mental Health, Mental Retarda-

tion and Substance Abuse Services and (ii)

qualified by specialized training and experi-

ence to perform forensic evaluations. The de-

fendant shall not be entitled to a mental health

expert of the defendant’s own choosing... .

Code § 19.2-264.3:1(A). Cherrix claims that Dr. John

Bulette, the expert appointed by the trial court, did not pos-

sess the qualifications required by the statute. Because the re-

cord shows that Dr. Bulette was qualified under the statute,

however, we find no error in the trial court’s appointment.?

> On appeal, Cherrix implies that the trial court’s action denied him rights

under the United States Constitution. See Ake v. Oklahoma, 470 U.S. 68,

84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985). To the extent that he attempts to

18a

Cherrix filed a motion, pursuant to the statute, requesting

the appointment of a defense expert to assist him in the capi-

tal sentencing phase of the trial. At a subsequent hearing,

Cherrix informed the trial court that he had inquired into

available experts, that he had “selected” Dr. Leigh Hagan of

Chesterfield County, and that he wanted the trial court to ap-

point Dr. Hagan.

The trial court subsequently informed counsel by tele-

phone that it had decided not to appoint Dr. Hagan because of

the distance between Chesterfield County and Accomack

County, and that it would instead appoint a local psychiatrist,

Dr. John Bulette. Without any objection, the trial court then

entered an order appointing Dr. Bulette.

Two days later, Cherrix filed a motion to reconsider the

matter and to appoint Dr. Hagan rather than Dr. Bulette,

which motion the trial court denied. At the hearing on that

motion, Cherrix conceded that Dr. Bulette was a psychiatrist

who had successfully completed his forensic evaluation

training. He contended, however, as he does now on appeal,

that because Dr. Bulette had never before been involved in a

capital murder case, he was not “qualified by specialized

training and experience to perform forensic evaluations,” as

required by the statute.

Contrary to Cherrix’s interpretation of Code § 19.2-

264.3:1(A)(ii), however, the statute does not require experi-

ence in capital murder cases as a qualification for an ap-

pointed expert. The relevant part of that statute simply re-

quires specialized training and experience to perform forensic

evaluations. The trial court was familiar with Dr. Bulette’s

make this argument, however, it is defaulted because he did not object to

Dr. Bulette’s appointment on any constitutional basis at trial. Rule 5:25.

Therefore, we address only his statutory argument. i

19a

background and specifically found that Dr. Bulette had “sub-

stantial experience” in such evaluations. Cherrix does not ar-

gue that Dr. Bulette lacked the training and experience ex-

pressly required by the statute, and we decline his invitation

to graft onto the statute the additional requirement of experi-

ence in capital murder cases. Accordingly, we find no error in

the trial coust’s appointment of Dr. Bulette.

B. Corrections Expert and Witnesses

Cherrix sought to present evidence regarding prison life

and its effect on his “future dangerousness” through the tes-

timony of an expert penologist, several Virginia corrections

officials, a criminologist, a sociologist, and an individual

serving a life sentence in the custody of the Virginia Depart-

ment of Corrections. The trial court initially granted Cher-

rix’s motion for the appointment of an expert penologist

pending submission of a report and cost estimate. The Com-

monwealth objected to the issuance of a subpoena for the in-

mate and moved to quash the subpoenas issued for the cor-

rections officials, criminologist, and sociologist.

Following a hearing at which Cherrix proffered the testi-

mony of these witnesses, the trial court determined that Cher-

rix’s evidence was immaterial as mitigation evidence and

therefore refused to compel the witnesses’ attendance through

subpoenas. The trial court vacated its prior order granting

Cherrix’s motion for appointment of an expert on the basis

that the report was not timely filed, the cost estimate was

high, and the proffered testimony of the expert, like the prof-

fered testimony of the other witnesses sought, was immate-

nial.

Cherrix argues that the trial court erred because Code §

19.2-264.4 allows presentation of mitigating evidence. He

contends that exclusion of his proffered “mitigation evi-

20a

dence” was an abuse of discretion and violated his federal

constitutional rights as established in Skipper v. South Caro-

lina, 476 U.S. 1, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986), and

Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S.

Ct. 869 (1982). We disagree.

Although the United States Constitution guarantees the

defendant in a capital case a right to present mitigating evi-

dence to the sentencing authority, it does not limit “the tradi-

tional authority of a court to exclude, as irrelevant, evidence

not bearing on the defendant’s character, prior record, or the

circumstances of his offense.” Lockett v. Ohio, 438 U.S. 586,

605 n.12, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). Code §

19.2-264.4(B) vests the trial court with the discretion to de-

termine, subject to the rules of evidence governing admissi-

bility, the evidence which may be adduced in mitigation of

the offense. Coppola v. Commonwealth, 220 Va. 243, 253,

257 S.E.2d 797, 804 (1979), cert. denied, 444 U.S. 1103, 62

L. Ed. 2d 788, 100 S. Ct. 1069 (1980).

The record shows that the evidence Cherrix sought to in-

troduce involved the general nature of prison life. The in-

mate’s proffered testimony sought to establish, based on the

inmate’s personal prison experience, what prison life would

be like for Cherrix if he received a life sentence. The officials

from the Department of Corrections would have testified re-

garding the ability of the penal system to contain Cherrix and

the cost to the taxpayers of an inmate’s life sentence. Cher-

rix’s counsel stated that the testimony of the expert penolo-

gist, the sociologist, and the criminologist would be similar

to that of the inmate and corrections officials. As the trial

court observed, none of this evidence concerns the history or

2la

experience of the defendant.* We agree with the conclusion of

the trial court that “what a person may expect in the penal

system” is not relevant mitigation evidence. Accordingly, we

will affirm the judgment of the trial court excluding this evi-

dence.

C. Post Trial-Offense Convictions

Cherrix filed a pre-trial motion to exclude from the sen-

tencing phase of the trial evidence of crimes he committed

after he committed the capital offense in January of 1994.

The trial court declined to rule on the motion because it was

premature. During the sentencing phase, the Commonwealth

offered as evidence two convictions that Cherrix received

after January 1994. We have already stated on two prior occa-

sions that evidence of_“prior history” to establish future

dangerousness under Code § 19.2-264.4(C) encompasses the

time after which the subject offense was committed, Joseph v.

Commonwealth, 249 Va. 78, 88-89, 452 S.E.2d 862, 869,

cert. denied, 516 U.S. 876, 133 L. Ed. 2d 137, 116 S. Ct. 204

(1995), and includes a defendant’s most recent history, Saun-

ders v. Commonwealth, 242 Va. 107, 117, 406 S.E.2d 39, 45,

cert. denied, 502 U.S. 944, 116 L. Ed. 2d 337, 112 S. Ct. 386

(1991). Accordingly, the trial court’s admission of this evi-

dence was proper.

D. Failure to Properly Advise Jury on Parole Eligibility

Cherrix contends that the trial court erred in failing to

properly advise the jury of his eligibility, or lack thereof, for

parole. He claims that, because “future dangerousness” was

relevant to his sentencing, the trial court erred in failing to in-

* Contrary to Cherrix’s assertion, none of the evidence proffered at trial

addressed Cherrix’s ability to conform or his experience in conforming to

prison life, as the defendant's evidence did in Skipper, 476 U.S. at 4.

ar

22a

form the jury that Cherrix “would effectively never be pa-

roled.” The record reveals, however, that Cherrix has waived

this argument for failure to object in the trial court. Rule

Kae

At the sentencing phase of the trial, Cherrix did not offer

a parole eligibility instruction. The issue of parole eligibility

did not arise until the jury foreman inquired of the trial court,

during deliberations, whether a life sentence would include

the possibility of parole. The trial court then suggested to

counsel that it should “instruct the jury that they are to have

no concern with parole.” When the trial court then asked

Cherrix for his position on the matter, Cherrix responded, “lI

would suggest that the court instruct the jury as you have in-

dicated. [The jury] should not be concerned with parole... .”

The trial court subsequently instructed the jury that it “must

decide whether to impose a life sentence or the death penalty

based upon the evidence and the instructions that you have

received and you are to give no consideration to the issue of

parole.” Cherrix’s failure to proffer a parole eligibility in-

struction and his failure to object to the trial court’s instruc-

tion in response to the jury’s inquiry mentioned above pre-

cludes us from addressing the merits of this assignment of

error.

E. Aggravating Factors

A penalty of death may be imposed only if the Common-

wealth proves, beyond a reasonable doubt, that the defendant

would commit criminal acts of violence that would be a con-

tinuing serious threat to society or that his conduct in com-

mitting the offense was outrageously or wantonly vile, horri-

ble or inhuman in that it involved torture, depravity of mind,

or aggravated battery. Code § 19.2-264.4(C). In this case, the

Commonwealth sought the death penalty based on both of the

aggravating factors, future dangerousness and vileness. The

23a

jury returned a sentencing verdict making the required find-

ings under both factors. Cherrix contends that the death pen-

alty should not have been imposed because it was “unreason-

able” for the jury to conclude that Cherrix would be a

continuing serious threat to society, and because the Com-

monwealth failed to prove that his actions in committing the

crime were outrageously or wantonly vile, horrible, or inhu-

man as that term is defined by the statute. We disagree.

1. Future Dangerousness

Cherrix argues that because the jury was fully informed

of Cherrix's sentences for other crimes, it “could reasonably

expect” that Cherrix had “at best” a “remote” chance of ever

being released. Thus, asserts Cherrix, any danger Cherrix

might pose would be to the society within the prison, and a

“five-foot-four inch, small framed, light weight man does not

represent a danger to fellow inmates or guards.”

Not only is this argument based primarily on speculation,

it ignores the substantial evidence in the record of Cherrix’s

continuing assaultive behavior for which he expressed little

remorse. Cherrix had a lengthy record of criminal convictions

including assault and battery, malicious wounding, and use of

a firearm. Furthermore, after the murder of Van Hart, Cherrix

shot his half-brother and, according to his own mental health

expert, had no remorse for the shooting. Cherrix had a similar

lack of remorse after he broke his mother-in-law’s arm with a

pool cue. Cherrix told his mental health expert that he

“would say anything to obtain his goals.” His expert testified

that Cherrix had an anti-social personality, was “angry with

women,” and acted out this anger by assaulting them. Finally,

there is nothing in the record regarding Cherrix’s ability to

conform to prison life and work productively in that envi-

ronment.

24a

Our review of the record fully supports the jury’s deter-

mination that Cherrix would constitute a continuing serious

danger to society.

2. Vileness

The jury verdict found Cherrix’s conduct in committing

the crime “outrageously or wantonly vile, horrible or inhu-

man in that it involved torture or depravity of mind... .”

Cherrix argues that the record fails to support this finding be-

cause there was no showing of depravity of mind beyond that

inherent in ordinary legal malice and premeditation, and be-

cause there was no torture in that Van Hart died almost in-

stantaneously. Again we disagree.

The events surrounding the murder show that Cherrix

carefully planned his crime and lured his victim to a remote

area. According to the defendant’s recitation of events, after

forcing her at gun point to partially disrobe and lie on the

ground, he forcibly sodomized her whiie holding a rifle to the

back of her head. Even though she “begged [him] not to kill

her” and promised that she would “act like this never hap-

pened,” he stood over her and shot her in the head for fear

that “she was going to tell on [him].” Not sure that the first

shot killed her, he “shot her again to make sure.”

After the murder, Cherrix drove around with the victim’s

body in the car, considered going to a restaurant for a beer,

and ultimately abandoned the car and victim at a deserted site

and tossed the murder weapon in a creek. He then went home

and called his wife at the hospital “like nothing ever hap-

pened.”” Cherrix visited the funeral home to view his victim’s

body and told the police that she looked “beautiful.”

This evidence supports the jury’s determination that

Cherrix’s conduct in committing the sodomy and murder

constituted torture of Van Hart or reflected depravity of mind.

25a

VII. Statutory Review

Code § 17.1-313(C) requires this Court to consider

whether the sentence of death was imposed “under the influ-

ence of passion, prejudice or any other arbitrary factor,” and

whether such sentence is excessive or disproportionate to

penalties imposed in similar cases, “considering both the

crime and the defendant.” As to our first consideration, Cher-

rix asserts that the death penalty was imposed under the in-

fluence of passion, prejudice, or some other arbitrary factor

because the jury improperly found the aggravating factors of

future dangerousness and vileness. However, we have already

determined that these jury findings were supported by the re-

cord. Our review of the record reveals no support for the

proposition that the jury imposed the death sentence as a re-

sult of passion, prejudice, or any other arbitrary factor.

In considering whether the sentence imposed in this case

is excessive or disproportionate to other sentences imposed

for similar crimes, we compare the record in this case with

records in other capital murder cases, including those in

which life sentences have been imposed. Since the jury based

its death sentence on both the future dangerousness and vile-

ness predicates, we give particular consideration to other

capital murder cases in which the death penalty was sought

based on both predicates.

When considering the penalty for convictions of capital

murder based on premeditated murder and rape/forcible sod-

omy, juries in this Commonwealth have generally, although

not without exception, imposed the death sentence. Barnabei

v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), cert.

denied, 520 U.S. 1224, 137 L. Ed. 2d 845, 117 S. Ct. 1724

(1997); Clozza v. Commonwealth, 228 Va. 124, 321 S.E.2d

273 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 370,

105 S. Ct. 1233 (1985); Coleman v. Commonwealth, 226 Va.

26a

31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109, 80 L.

Ed. 2d 145, 104 S. Ct. 1617 (1984); Waye v. Commonwealth,

219 Va. 683, 251 S.E.2d 202, cert. denied, 442 U.S. 924, 61

L. Ed. 2d 292, 99 S. Ct. 2850 (1979). The death sentence has

been imposed in cases where the victim, like the victim in

this case, was killed solely to assure her silence. Hedrick v.

Commonwealth, 257 Va. —, 513 S.E.2d 634 (1999) (this day

decided); Justus v. Commonwealth, 220 Va. 971, 266 S.E.2d

87 (1980), cert. denied, 455 U.S. 983, 71 L. Ed. 2d 693, 102

S. Ct. 1491 (1982); Smith v. Commonwealth, 219 Va. 455,

248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1979).

Based on this review, we conclude that Cherrix’s death sen-

tence is neither excessive nor disproportionate to penalties

imposed by other sentencing bodies in the Commonwealth

for similar and comparable crimes.

VIII. Conclusion

We find no reversible error in the issues presented in this

case. After reviewing Cherrix’s death sentence pursuant to

Code § 17-110.1, we decline to commute the sentence of

death. Therefore, we will affirm the judgment of the trial

court.

Record No. 981798—Affirmed.

Record No. 982063—Affirmed.

27a

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the 16th

day of April, 1999.

Brian Lee Cherrix, Appellant,

against Record Nos. 981798 and

982063

Circuit Court No. 97CR134

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing

On consideration of the petition of the appellate to set

aside the judgments rendered herein on the 26th day of Feb-

ruary, 1999 and grant a rehearing thereof, the prayer of the

said petitioner is denied.

A Copy,

Teste:

/s/

Clerk

28a

AMENDMENT VIII

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

AMENDMENT XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among

the several states according to their respective numbers,

counting the whole number of persons in each state, exclud-

ing Indians not taxed. But when the right to vote at any elec-

tion for the choice of electors for President and Vice Presi-

dent of the United States, Representatives in Congress, the

executive and judicial officers of a state, or the members of

the legislature thereof, is denied to any of the male inhabi-

tants of such state, being twenty-one years of age, and citi-

zens of the United States, or in any way abridged, except for

participation in rebellion, or other crime, the basis of repre-

sentation therein shall be reduced in the proportion which the

number of such male citizens shall bear to the whole number

of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representa-

tive in Congress, or elector of President and Vice President,

or hold any office, civil or military, under the United States,

or under any state, who, having previously taken an oath, as a

EEL

Wo Ne RRR ee te ee

29a

member of Congress, or as an officer of the United States, or

as a member of any state legislature, or as an executive or ju-

dicial officer of any state, to support the Constitution of the

United States, shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the enemies

thereof. But Congress may by a vote of two-thirds of each

House, remove such disability.

Section 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for pay-

ment of pensions and bounties for services in suppressing in-

surrection or rebellion, shall not be questioned. But neither

the United States nor any state shall assume or pay any debt

or obligation incurred in aid of insurrection or rebellion

against the United States, or any claim for the loss or eman-

cipation of any slave; but all such debts, obligations and

claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

CODE OF VIRGINIA

§ 19.2-264.4. Sentence proceeding

A. Upon a finding that the defendant is guilty of an of-

fense which may be punishable by death, a proceeding shall

be held which shall be limited to a determination as to

whether the defendant shall be sentenced to death or life im-

prisonment. In case of trial by jury, where a sentence of

death is not recommended, the defendant shall be sentenced

to imprisonment for life.

A1.In any proceeding conducted pursuant to this section,

the court shall permit the victim, as defined in § 19.2-11.01,

upon the motion of the attorney for the Commonwealth, and

30a

with the consent of the victim, to testify in the presence of the

accused regarding the impact of the offense upon the victim.

The court shall limit the victim's testimony to the factors set

forth in clauses (i) through (vi) of subsection A of § 19.2-

299.1.

B. In cases of trial by jury, evidence may be presented as

to any matter which the court deems relevant to sentence, ex-

cept that reports under the provisions of § 19.2-299, or under

any rule of court, shall not be admitted into evidence.

Evidence which may be admissible, subject to the rules of

evidence governing admissibility, may include the circum-

stances surrounding the offense, the history and background

of the defendant, and any other facts in mitigation of the of-

fense. Facts in mitigation may include, but shall not be lim-

ited to, the following: (i) The defendant has no significant

history of prior criminal activity, (ii) the capital felony was

committed while the defendant was under the influence of

extreme mental or emotional disturbance, (iii) the victim was

a participant in the defendant’s conduct or consented to the

act, (iv) at the time of the commission of the capital felony,

the capacity of the defendant to appreciate the criminality of

his conduct or to conform his conduct to the requirements of

law was significantly impaired, (v) the age of the defendant at

the time of the commission of the capital offense or

(vi) mental retardation of the defendant.

C. The penalty of death shall not be imposed unless the

Commonwealth shall prove beyond a reasonable doubt that

there is a probability based upon evidence of the prior history

of the defendant or of the circumstances surrounding the

Commission of the offense of which he is accused that he

would commit criminal acts of violence that would constitute

a continuing serious threat to society, or that his conduct in

committing the offense was outrageously or wantonly vile,

3la

horrible or inhuman, in that it involved torture, depravity of

mind or aggravated battery to the victim.

D. The verdict of the jury shall be in writing, and in one

of the following forms:

(1) “We, the jury, on the issue joined, having

found the defendant guilty of (here set out

statutory language of the offense charged) and

that (after consideration of his prior history

that there is a probability that he would com-

mit criminal acts of violence that would con-

stitute a continuing serious threat to society)

or his conduct in committing the offense is

outrageously or wantonly vile, horrible or in-

human in that it involved (torture) (depravity

of mind) (aggravated battery to the victim),

and having considered the evidence in mitiga-

tion of the offense, unanimously fix his pun-

ishment at death.

man”

or

(2) “We, the jury, on the issue joined, having

found the defendant guilty of (here set out

statutory language of the offense charged) and

having considered all of the evidence in ag-

gravation and mitigation of such offense, fix

his punishment at imprisonment for life.

E. In the event the jury cannot agree as to the penalty, the

court shall dismiss the jury, and impose a sentence of impris-

onment for life.